Alternatives to a public inquiry

Assuming that there is public concern that a matter needs to be investigated and acted upon, the state has a number of vehicles available. It may be worth considering some of them so as to highlight the strengths and weaknesses of a public inquiry.

Prosecution

Where there is reason to believe that individuals or companies have broken the law then the most obvious course is for there to be a criminal investigation and a prosecution. Investigators such as the police and the Serious Fraud Office have extensive powers to collect evidence and have the experience and the structures to do so economically. Prosecutors such as the Crown Prosecution Service have considerable experience in assessing evidence and constructing cases. The more serious charges are tried by juries, which are the embodiment of society. When a jury believes that the defendant has committed a crime then punishment will follow.

All of those are powerful advantages and they will often militate against a public inquiry. However, the rules of criminal evidence are strict, thereby excluding a good deal of information that could emerge in a public inquiry. The burden of proof, namely beyond reasonable doubt, is set very high and may lead to acquittals where a public inquiry would find fault. In addition, where the apparent criminality is widespread or has been facilitated by state failures, simple prosecutions may not be sufficient to uncover the entire truth and may not enable lessons to be learned. Juries do not return narrative verdicts and trial judges are rarely in a position to make recommendations that will deter repetition. For those reasons a public inquiry may be a better option, even where it entails immunity from subsequent prosecution, as in the Stephen Lawrence Inquiry.

Inquest

By section 8(1) of the Coroners Act (1988), where a Coroner is informed that the body of a person is lying within his district and there is reasonable cause to suspect that the deceased has died a violent or unnatural death, a sudden death of which the cause is unknown or has died in prison, he shall as soon as practicable hold an inquest. By section 10 of the Act the Coroner has power to summon witnesses and to impose a fine for non-compliance. Under section 11 of the Act, the Coroner shall examine on oath all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine. Under some circumstances, set out in section 8(3), the Coroner must summon a jury.

After hearing the evidence, the Coroner or jury shall give a verdict and certify it by an inquisition which shall set out, so far as such particulars have been proved, who the deceased was and how, when and where he came by his death. By section 11(6) the purpose of the proceedings shall not include the finding of any person guilty of murder, manslaughter or infanticide.

By section 17A(1) if during, but before the conclusion of, an inquest into a death the Coroner is informed by the Lord Chancellor that a public inquiry conducted or chaired by a judge is being, or is to be, held into the events surrounding the death and the Lord Chancellor considers that the cause of death is likely to be adequately investigated by the inquiry the Coroner shall, in the absence of any exceptional reason to the contrary, adjourn the inquest.

Where a Coroner has adjourned an inquest, the Lord Chancellor shall send him the findings of the public inquiry as soon as reasonably practicable after their publication.

A Coroner may only resume an inquest which has been adjourned under section 17 if exceptional circumstances exist. The Hutton Report, dealing with the circumstances surrounding the suicide of David Kelly was sent to the Coroner at the end of the inquiry in accordance with Section 17A of the Act. In an open court hearing on 14 March 2004, the Coroner himself decided that there was no exceptional reason to resume the adjourned inquest.

It should be noted that the Coroner system will be substantially reformed by the proposed Coroners and Justice Bill which was introduced in the House of Commons on 14 January 2009. This will include the introduction of a new death certification system to provide reassurance that there is independent checking of the causes of death and the creation of the office of the Chief Coroner.

It is likely, even in the examination of single deaths, that a public inquiry will have wider powers than that of an inquest. Even Lord Hutton’s terms of reference, namely the “urgent investigation into the circumstances surrounding the death of Dr Kelly” were drawn and interpreted more widely than the powers of the Coroner.

Clearly some public inquiries will involve no deaths, or multiple deaths, and so are not apt for inquests. Further, an inquest does not have the power to make recommendations. In a death of any complexity, the lack of the ability to have an assessor or counsel may render an inquest an unwieldy tool.

Parliamentary committee

Parliament has extensive powers to call for documents and witnesses, and has considerable experience through its committee system of threshing through complex materials in order to find facts and make strident recommendations. Further, the parliamentary nature of the process is conducive to such recommendations being implemented. There are two drawbacks compared with a public inquiry. The first is one of principle. Where there is public concern about a matter involving the process of government an inquiry which is conducted within Parliament may be perceived as insufficiently independent to allay that concern. The second is pragmatic. There are generally a number of public inquiries sitting at any one time. They require considerable resources and take significant time to hear evidence. If, for example, a transport committee were to commit itself to an investigation into a rail crash and then the need for another similar inquiry became pressing it would simply be impractical for the committee to cover both issues within a reasonable time.

Committee of Privy Councillors

This has the advantage of being able to hear and see secret material without inhibition. The disadvantage is the proceedings will be viewed as secretive.

Consultative group or forum

On a number of occasions matters of public concern which are thought to be structural and historic have been the subject of proposals for sweeping commissions. The report of the Eames Bradley Consultative Group of the Past into the way in which murders during the troubles in Northern Ireland should be considered is one such example. The tension in such cases is between an investigation in which each individual death can be thoroughly considered, and a general review, by which patterns of murders can be acknowledged. Such tensions have led to a number of different approaches. Currently in Northern Ireland the Historical Enquiries Team, which is answerable to the Police Service of Northern Ireland, is conducting a police investigation into a large number of unsolved murders. The Eames Bradley proposal is for a less thorough set of inquiries coupled with payment of compensation to the families of all those murdered during the troubles. The proposal has not met with support, principally because it is does not set out to uncover the truth.

Following a large number of calls for public inquiries following deaths in custody, the Forum for Preventing Deaths in Custody was established.  The aim of the forum is to identify learning opportunities arising from deaths across the various custodial sectors and to prevent future deaths.